EPA’s Proposed Existing Power Plant Rule Is Blatantly Illegal

On June 2, 2014, the Environmental Protection Agency proposed one of the most onerous regulations in American history, which would mandate that states require existing coal-fired power plants to reduce carbon dioxide emissions by a staggering 30 percent in just 15 years.

This proposed rule would have devastating consequences on America's economy, and the West Virginia economy in particular. The rule would force existing power plants to close, will cause coal miners to lose their jobs, shutter many businesses, and impose what amounts to a massive energy tax on all Americans.

While the policy consequences of the proposed rule are now being hotly debated, one critical aspect of this proposed rule has been largely overlooked: the proposed rule is blatantly illegal, and the Obama administration likely knows it. That illegality is particular problematic for the administration given the U.S. Supreme Court’s recent rebuke of another EPA carbon dioxide rule, which had also sought “bring about an enormous … expansion in EPA’s regulatory authority without clear congressional authorization.”

To understand why the proposed existing coal-fired power plant rule is illegal, a little background is required. In 1990, Congress amended the Clean Air Act to give the EPA a choice when regulating existing sources of pollution, such as coal-fired power plants: either regulate only hazardous emissions from those plants under national standards, or require states to regulate any emissions from those plants on a state-by-state basis. The EPA cannot do both. The reason for this restriction makes sense: when the EPA chooses to impose national standards on an existing power plant, the EPA should not be permitted to require states to impose additional regulations on that same power plant. Such double regulation would cause many existing power plants to close, putting the workers at those plants out of work.

In 2012, the EPA imposed severe federal regulations on hazardous emissions from coal-fired power plants, which by the EPA’s own estimate will cost those plants over $9 billion dollars per year to comply. The choice to impose national standards on power plants means the EPA now has no authority to force state-by-state regulation of carbon dioxide emissions from those same plants. That is why the EPA has been forced to admit that its proposed carbon dioxide rule violates the “literal” terms of the Clean Air Act.

So how does the EPA attempt to get out of the literal terms of Clean Air Act? Its answer defies belief. It admits that the Clean Air Act, as set forth in U.S. Code, prohibits the proposed rule. However, the EPA claims that a one-sentence clerical “drafting error” — which was accidentally included in the 1990 Amendments to the Act — creates an ambiguity in the law that permits the agency to disregard “literal” terms of the 1990 Amendment. EPA’s attempt to exploit a “drafting error” — which was properly excluded from the U.S. Code — is wrong because the law is clear that clerical errors can never trump the substantive terms of a statute.

In a brief that I recently filed with a bipartisan group of nine States challenging EPA’s proposed rule, we point to dozens of similar “drafting errors” and explain that not one of those errors have ever been given any effect by any court.

Given the clear unlawfulness of the EPA’s proposed rule, the experienced attorneys at the agency, the Department of Justice, and the White House must know that the rule will face a tough road in the courts. Whether the courts strike down the rule now, in its proposed form, or after it has been finalized, the inevitable result will be the same. Accordingly, it is fair to ask whether the Obama Administration is going forward with this futile exercise to scare existing coal-fired power plants into closing their doors before the rule is invalidated in court. These plants are already straining under the $9 billion per year cost to comply with the federal regulations that the EPA imposed on them in 2012. Forcing power plants to close because of the fear of duplicative regulation is exactly what the 1990 Amendment to the Clean Air Act prohibits.

Americans may be divided on what measures to take to deal with the global issue of carbon dioxide emissions, but we should be united in our respect for the rule of law. It is unconscionable for the EPA to attempt to exploit an inadvertent “drafting error” to threaten to impose one of the most burdensome regulations in this nation’s history. The U.S. Constitution leaves decisions of this magnitude to Congress, which is the only body with the legal authority to repeal the 1990 Amendment’s prohibition against double regulation of coal-fired power plants. The EPA should withdraw its proposed rule immediately.